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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal.
Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com

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Thursday, August 10, 2017

A storm is brewing for DACA this September

Washington (CNN) A suite of pressures on the policy that protects young undocumented immigrants is brewing — and it could mean the program soon either becomes permanent or disappears entirely.

Next month, the Trump administration faces both an ultimatum from challengers to the Deferred Action for Childhood Arrivalspolicy, or DACA, and a potentially nasty government funding fight that could require an 11th hour deal to avert a shutdown.

Last week, the administration’s biggest defender of DACA moved much closer to the President, who has also spoken about being sympathetic to DACA recipients. Gen. John Kelly is now the White House chief of staff, and as homeland security secretary, he spoke frequently about preserving the program under this administration.

But the move also takes him out of the department that was responsible for issuing permits under the Obama administration policy — and he recently warned Democrats on the Hill that the program’s prospects are dim.

When Congress wraps up its August recess, members will return to a consequential month — one in which they may be forced to act whether they want to or not.

The earliest trigger will be September 5. That’s the deadline in an ultimatum issued by Texas Attorney General Ken Paxton and nine other state attorneys general to the Trump administration: Rescind DACA or we will challenge it in an unfriendly court. They have already succeeded in stopping a similar program to protect the parents of childhood arrivals to the US.

Trump said the ultimate decision on what to do will be made by him.

“It’s a decision that I make and it’s a decision that’s very, very hard to make. I really understand the situation now,” Trump said in a conversation with reporters on Air Force One last month. “I understand the situation very well. What I’d like to do is a comprehensive immigration plan. But our country and political forces are not ready yet.”

Trump has spoken recently about having compassion for recipients of the policy, which protects undocumented immigrants brought to the US as children from deportation and allows them to work and study in the US. But he also pledged to end the program “immediately” on the campaign trail, and his base strongly opposes the Obama administration policy they call an “amnesty.”

That could make punting the issue to Congress an appealing solution for the administration.

“My assumption is that the cleanest thing they can do, though they’ll take the vast majority of the blame for ending the program, is simply announce come September 5 a sunset of the program, that they’ll stop approving applications, and then invite Congress to work on legislation,” said a Democratic congressional staffer familiar with the issue who spoke on condition of anonymity to be candid.

Congress forced to act?

Meanwhile, Congress will have to pass a funding bill in September to keep the government open past the end of the month and raise the debt ceiling — and the White House is once again pushing for money for its promised border wall.

Democrats have signaled they won’t allow that to happen, setting up a potential government shutdown standoff.

Republicans could look for a sweetener to get the border money, and if the administration ends DACA, there could be a clamor to pass legislation that enshrines it permanently.

Congress has multiple solutions to choose from. There are bipartisan options from Sens. Lindsey Graham, a South Carolina Republican, and Dick Durbin, an Illinois Democrat, who have introduced both the Bridge Act, which would protect people currently under the program, and the Dream Act, which would create a path to citizenship in the future for those eligible. Those two also have House counterparts.

DACA-supporting Republicans have lined up behind a bill from Florida Republican Rep. Carlos Curbelo, the Recognizing America’s Children Act, and Democrats have largely signed onto Illinois Rep. Luis Gutiérrez’s American Hope Act.

There are likely enough Republicans who would support such bills with Democrats to pass them — but the question remains what they would get in return to placate the part of the Republican base who would decry even allowing a vote on the bills by leadership. And Democrats would also have to agree to the asking price for a compromise, which may be equally tough for their base to swallow.

The Trump administration has also already said it would be “likely” to oppose the Dream Act, according to a briefing with legislative director Marc Short.

Thus far, leadership is keeping their cards close to the vest.

“I think it’s really important to talk about securing the borders and enforcing the law,” Senate Majority Whip John Cornyn said when asked Thursday about DACA at an announcement for his border security bill.

Advocacy groups on high alert

Advocacy groups that support DACA have been holding press conferences, events and rallies in recent weeks in anticipation of a potential opening to save the program.

Democratic state attorneys general have launched their own effort to protect DACA, and the Mexican American Legal Defense and Educational Fund has preemptively petitioned the court to not consider any move to include DACA in the ongoing litigation.

On the other side, right-wing groups that oppose what they consider an “amnesty” for undocumented immigrants are mobilizing to ensure Republicans hold firm — and preparing to punish any that would allow for a deal on DACA without a massive concession from Democrats.

The Democratic staffer acknowledged that the issue may be unresolvable, as both sides are going to be unhappy with the deal the other wants to strike.

“This idea that we can reach some kind of bipartisan compromise, that used to be true, but the groups on both sides are so dug in. … These are two groups that hate each other and they can’t talk to each other, and there’s nothing in between,” the staffer said.